People v. Woltz

FOURT, J. This is an appeal by the defendant from a judgment of conviction of assault with intent to commit rape and from an order denying a motion for a new trial. Respondent has made a motion to dismiss the appeal upon the ground that it presents no meritorious question.

In an information filed in Santa Barbara County the defendant was charged with the crime of rape by force and violence and against the will of his named victim. It also was charged that defendant previously had been convicted of robbery in Ohio and had served a term in a state prison therefor and that he had been convicted of possessing firearms in California (as an ex-felon) and with writing fictitious checks, and further that he had served a term in prison therefor. The [341]defendant pleaded not guilty and prior to the time of trial admitted the prior convictions as charged. A jury trial was had and defendant was found guilty of the lesser included offense of assault with intent to commit rape. An appeal was taken to this court.

Appellant made an application to this court for the appointment of counsel. Following the then procedure we referred the matter to the Committee on Criminal Appeals of the Los Angeles Bar Association and the cause was thoroughly gone into by a member of that committee. A report was made to this court which contained in part the following:

“I have examined the reporter’s transcript and the clerk’s transcript in the above entitled matter.

“I find no basis by which the verdict of the jury should be reversed.

“I found no basis for legal error insofar as the conduct of the trial was concerned.

“I believe the jury made adequate concession in this instance when they brought in an assault with intent to commit rape, a lesser included offense, rather than the claim of rape.”

Based upon that report and our independent investigation and research of the record we denied defendant’s motion to appoint counsel and at that time granted added time within which defendant could file a brief in his own behalf if he was so minded.

Appellant thereafter made another motion to this court for the appointment of counsel and such motion was denied.

Appellant petitioned the Supreme Court of California for a hearing in the matter. Such hearing was denied (three justices voted for a hearing). Defendant’s appeal subsequently was dismissed under rule 17 (a), California Rules of Court,* on December 27, 1961, and the remittitur issued.